The document summarizes the process for establishing guardianships under Texas law. It discusses: (1) definitions of key terms like guardian, ward, and incapacitated person; (2) the jurisdiction and venue of courts over guardianship proceedings; (3) the required contents of an application to establish a guardianship; (4) the notice and citation requirements; (5) qualifications for who can serve as a guardian and grounds for disqualification; and (6) the required findings and evidentiary standard for appointing a guardian.

1. ESTABLISHMENT OF GUARDIANSHIPS
Two Allen Center
October 23, 2015
Houston Volunteer Lawyers

2. Kenny Sumner
Romano & Sumner, LLC
2245 Texas Dr., Suite 300
Sugar Land, Texas 77479
Tel. (281) 242-0995
ksumner@romanosumner.com
www.romanosumner.com

3. Definitions
• Chapter 1002 of the Estates Code
• "Guardian" means a person who is appointed guardian under
Subchapter D, Chapter 1101 of this code, or a temporary or
successor guardian. Except as expressly provided
otherwise, "guardian" includes the guardian of the estate and
the guardian of the person of an incapacitated person
• "Incapacitated Person” means (1) A minor; (2) An adult
individual who, because of a physical or mental condition, is
substantially unable to provide food, clothing, or shelter for
himself or herself, to care for the individual's own physical
health, or to manage the individual's own financial affairs; or
(3) A person who must have a guardian appointed to receive
funds due the person from any governmental source.
• “Interested Person” means (1) an heir, devisee, spouse,
creditor, or any other person having a property right in or a
claim against an estate being administered; or (2) a person
interested in the welfare of an incapacitated person
• "Proposed Ward" means a person alleged to be incapacitated
in a guardianship proceeding.
• "Ward" is a person for whom a guardian has been appointed

4. Guardianship

5. HOW?
• How is a Guardianship Proceeding started?
• Section 1055.001 Any person may commence a
Guardianship Proceeding, unless the person has
an interests that is adverse to the proposed ward.
• Challenges to a party’s standing (i.e. that they
have an adverse interest) are brought by a Motion
in Limine (very different from what most
attorney’s recognize as a pre-trial motion to
exclude evidence)
• Chapter 1102 The Court initiates a procedure to
appoint a guardian if they have been given
probable cause (usually after they have received
an information letter)
1. Court will appoint an investigator or
Guardian Ad Litem (GAL) to see if the person
is incapacitated or if a guardianship is
necessary

6. WHERE?
• JURISDICTION
• Section 1022.001 All Guardianship Proceedings
must be filed and heard in a court exercising
original probate jurisdiction. The Court also has
jurisdiction of all matters related to the
guardianship (defined in Section 1021.001). The
Court may also exercise pendent and ancillary
jurisdiction as necessary to promote judicial
efficiency and economy.
• Section 1022.005 for any county in which there is
a Statutory Probate Court (SPC), that Court has
exclusive jurisdiction of all guardianship
proceedings.
• Section 1022.006 However, the SPC has
concurrent jurisdiction with a district court in
personal injury, survival or wrongful death
actions by or against a person in the person’s

7. • Section 1022.002 In a county in which there is no SPC or
County Court at Law exercising original probate
jurisdiction (CCL) , the county court (CC) has original
jurisdiction
• If the county does not have a SPC but does have a CCL,
then the CC and the CCL have concurrent original
jurisdiction.
Q: What happens if the Guardianship Proceeding is
contested?
• The SPC has jurisdiction for all Guardianship
Proceedings
• Section 1022.003 County with no SPC or CCL
• Judge of the CC may, or on the motion of a party,
shall (according to the motion)
(a) request the assignment of a Statutory Probate
Court Judge
(b) transfer the contested matter to a District Court
The preference is for a SPC Judge. The CC
Judge may request that the SPC Judge hear the
entire proceeding. A SPC Judge is grated the

8. • Section 1022.004 County with no SPC but has a CCL
• Judge of the CC may, or on the motion of a party,
shall Transfer the contested matter to the CCL
• The Judge of the CC may transfer either the
contested matter or the entire proceeding to the
CCL
• The CCL may hear the proceeding as if it was
originally filed in the CCL
• Section 1022.007 (“Reach out and grab ya!”)
• A Judge of a SPC may transfer to the SPC a cause
of action that is a matter related to a guardianship
proceeding pending in the SPC
• The Judge can consolidate the transferred cause
of action with the Guardianship Proceeding

9. • Section 1022.008 Transfer of contested
guardianship of a Minor
• If an interested person contests an
application or seeks the removal of a
guardian the Judge, on the Judge’s own
motion, may transfer all matters related to
the Guardianship Proceeding to a court of
competent jurisdiction in which a SAPCR
under the Family Code is pending

10. • VENUE
• Section 1023.001
• For an incapacitated person, venue is mandatory
in county in which
• Proposed ward resides, or
• Proposed Ward is located on the date the application
is filed, or
• The principal estate of the proposed ward is located
• For a minor (remember an incapacitated person
includes a minor) venue is permissive in county:
• Where both parents reside
• Where parent who is sole managing conservator
resides
• If only one parent is living, where that parent
resides
• If both parents dead, but minor was in custody of a
deceased parent, county where last surviving parent
resided
• If both parents died in a common disaster and no
evidence parents died other than simultaneously the
county in in which both deceased parents resided at
the time of their simultaneous deaths

11. WHAT?
• A guardianship proceeding begins with a written
application filed in a court exercising probate
jurisdiction
• Section 1101.001(b) requires the application to
contain:
1. Information about the proposed ward
2. Information about the proposed guardian
3. The type of guardianship sought
3-a. Whether alternatives to guardianship and
available supports and services to avoid
guardianship where considered
3-b. Whether any alternatives to guardianship and
supports and services available to the proposed
ward considered are feasible and would avoid
the need for a guardianship
4. Information about the incapacity of the proposed
ward, specific areas of protection, and the
limitation or termination of rights requested
including:
a. The right of a proposed ward over 18 to vote
b. The right of a proposed wards ability to drive

12. 5. Facts requiring a guardian
6. Interest of the applicant
7. Nature of any kind of guardianship currently
existing
8. Name & address of any person or institution
having care and custody of the proposed ward
9. Approximate value and description of
proposed ward’s property
10. Name & address of any person holding a
power of attorney signed by the proposed
ward
11. For a minor proposed ward
a. Parents’ names, address or whether
deceased
b. Siblings’ names, address or whether
deceased
c. If no living parents or siblings, then the

13. 12. For a minor proposed ward, whether the minor was
the subject of a legal or conservative proceeding in
the preceding 2 years, if so
a. Court involved
b. Nature of the proceeding
c. Any final disposition of the proceeding
13. For an adult proposed ward
a. Spouse name, if any, and address or that spouse
deceased
b. Parents names & address or that they are deceased
c. Name and age of any siblings and address or that
they are deceased
d. Name and age of any children and address or that
they are deceased
e. If no living spouse, parent, adult siblings, or adult
child, the names & address of other adult living
relatives within the third degree of consanguinity
14. Facts showing the Court has venue
15. If applicable, that the proposed guardian is a private
professional guardian who is certified and has
complied with all requirement

14. • Typically an applicant will also file a motion for
the appointment of an attorney ad litem (AAL).
• Section 1054.001 mandates that the Court appoint
an attorney ad litem to represent the ward’s
interests.
Note: To be eligible for appointments (and
now to represent an applicant) the attorney
must have the guardianship certificate.
Luckily for us here today we will meet this!
• Section 1054.005 mandates that the Court appoint
a language or sign interpreter if necessary to
ensure effective communication between the
proposed ward and the attorney (the Court’s like
bi-lingual attorneys for this reason)
• The AAL will file an answer for the proposed
ward, their client.

15. • The applicant also has to file a physician’s certificate.
If available, it is usually filed along with the
application.
• Section 1101.103(a) . . . the Court may NOT grant an
application to create a guardianship for an
incapacitated person, other than a minor or person
who needs a guardian to receive funds from a
government source, unless the applicant presents a
written letter or certificate from a physician licensed
in Texas. The letter/certificate
1. Must be dated no earlier than 120 days before
the date of the application is filed
2. Must be based on an examination that was
performed no earlier than 120 days before the
application is filed.
• The certificate will set forth the examining

16. • Section 1101.104 extends the time periods for the
certificate to 24 months before the hearing date in
cases where the proposed ward has an
intellectual disability (formerly mental
retardation)
• However, the determination of intellectual
disability must be made by either a physician or a
psychologist licensed in Texas or certified by the
Department of Aging and Disability Services.
• If the applicant does not have a certificate when
filing the application and they cannot obtain one
(the proposed ward refuses to consent), they can
file a Motion for an Independent Medical
Evaluation.
• If the Court finds it necessary – at a hearing – the
Court can appoint the necessary physician(s) to

17. So, now that all the paperwork is filed with the
Court, what’s next. . . Notice & Citation!
• Those parties who have an interest in the
proposed ward must be given notice and/or
served in a Guardianship Proceeding
• Section 1051.103 The sheriff or other officer shall
personally serve citation on:
1. A proposed ward, who is 12 years of age or older;
(An AAL cannot waive personal service upon the
proposed ward)
2. The proposed ward's parents, if their
whereabouts are known or can be reasonably
ascertained;
3. Any court-appointed conservator or person
having control of the care and welfare of the
proposed ward;
4. The proposed ward’s spouse if the whereabouts of

18. • Section 1051.104 The applicant must also send
notice to the list of individuals listed in this
section and must file with the court a Copy of the
notice and an affidavit stating that the notice was
mailed
• Section 1051.106 The court may not act on an
application until the applicant has filed a copy of
the notice and the affidavit

19. WHEN?
• Chapter 1103 of the Estates Code provides for
circumstances where a minor also has a
disability that will continue past their 18th
birthday
• The application for guardianship can be filed no
earlier than 180 days before the proposed ward’s
18th
birthday.
• If the application is heard before the proposed
ward’s 18th
birthday, then the person who was
appointed as guardian cannot actually become
the guardian until after the proposed ward turns
18

20. WHO?
• Best Interest standard utilized by the Court (Section
1104.101, see also Chapter 1104, Subchapter B)
• Section 1104.001 Generally, there can be only one
guardian of the person or estate, but one person can
be the guardian or the person and another can be
guardian of the estate.
• However there are exceptions: a husband & wife,
joint managing conservators. . .
• Section1104.002 Before appointing a guardian, the
court shall make a reasonable effort to consider the
incapacitated person’s preference of the person to be
appointed guardian and, to the extent consistent with
other provisions of this title, shall give due
consideration to the preference indicated by the
incapacitated person, regardless of whether the
person has designated by declaration a guardian
before the need arises.
(this addition clarifies the previous uncertainly
between a declaration made by a person prior to any
incapacity and the wishes of that same person as a

21. • Section 1104.054 A minor at least 12 years old may
also select a guardian by filing written statement with
the court (so long as the court finds the selection to be
in the minor’s best interest)
• Section 1104.052 Guardianship for minor orphan
• Nearest ascendant in the direct line of the minor
• If equal, the court selects based on the best
interest of the minor
• Nearest of kin, or if two are equal, court selects
based on best interest of the minor
• If no relative, the court appoints.
• Section1104.053 A parent may designate a guardian in
a Will or Written designation. The court appoints this
person in preference to anyone else so long as the
court finds the person is not disqualified and would
be in the best interest of the minor(s).
• Similar provision in Section 1104.103 for adult
individual who is an incapacitated person.

22. • Section 1104.202 A person who is not
incapacitated may make a written declaration of
who they would want to be their guardian of the
person, estate, or both in the event they become
incapacitated and may disqualify a person from
being guardian. The court cannot under any
circumstances appoint a disqualified person. See
also Section 1104.355
(But see revisions to Section1104.002)
• Section 1104.210 A declaration may be revoked in
the same fashion as revoking a Will
• Section 1104.211 If a person is divorced, and the
declaration names the spouse as guardian, the
provision appointing the spouse has no effect.

23. • DISQUALIFICATION
• Section 1104.351 A minor or a person who
because of inexperience, lack of education, or
other good reason, is incapable of managing the
person or estate of a was may not be appointed
guardian.
• Section 1104.352 The court may not appoint a
guardian if the court finds them unsuitable. (The
court’s trump card)
• Section 1104.353 A person cannot be appointed as
guardian is their conduct is notoriously bad, and
it is presumed not to be in the best interest of the
ward if the person has been convicted of:
• Any sexual offence
• Aggravated assault
• Injury to a child or to the elderly or a disabled person
• Abandoning or endangering a child
• Terroristic threat, or
• Continuous violence against the family of the ward or

24. • Section 1104.354 Conflict of Interest. A person
cannot be appointed as guardian if the person has
a conflict of interest. (unless it is a situation
where the Court can appoint a GAL to represent
the interest of the proposed ward.)
Note: Remember standing and Adverse
Interest in Section 1055.001
• Section 1104.356 Cannot be a guardian if you do
not have the certification required by Subchapter
F
• Section 1104.357 Cannot be a guardian if you are a
nonresident and you have failed to file with the
court the name of a resident agent to accept
service and all actions or proceedings relating to
the guardianship.

25. • Almost…
• The next step is the Hearing. Section 1101.051
• At the hearing, the court must inquire into the ability
of the proposed ward to care for themselves and
manage their property.
• The proposed ward must be present unless the Court
determines on the record or in the order that personal
appearance is not necessary.
• The court can close the hearing at the request of the
proposed ward, or the AAL
• Section 1101.052 The proposed ward is entitled to a
jury trial on request.
Are we done yet?

26. • Section 1101.101 Findings & Proof
• The Court must find by clear and convincing
evidence that:
• The proposed ward is an incapacitated
person,
• It is in the proposed ward’s best interest
to have the court appoint a guardian
• The proposed ward’s rights or property
will be protected by the appointment of a
guardian
• Alternatives to guardianship that would
avoid the need for the appointment of a
guardian have been considered and
determined not to be feasible
• Supports and services available to the
proposed ward that would avoid the need
for the appointment of a guardian have

27. • Section 1101.101 Findings & Proof (Continued)
• The Court must find by a preponderance of the
evidence that:
• The court has venue of the case
• The person to be appointed is eligible
• If a guardian is appointed for a minor, the
guardianship is not created for the primary
purpose of enabling the minor to establish
residency for enrollment in a school
• The proposed ward:
• Is totally without capacity, or
• Lacks the capacity to do some, but not
all, of the tasks necessary to care for
themselves or manage their property. [a
finding here must specifically state
whether the proposed ward lacks the
capacity, or lacks sufficient capacity
with supports and services, to make
personal decisions regarding residence,
voting, operating a motor vehicle, and

28. • Section 1101.153 Order - generally
• The order appointing a guardian must contain
• Name of the person appointed
• Name of the ward
• Whether it is a guardian or the person,
estate, or both
• The amount of any bond required
• If a guardianship of the estate and the court
considers it necessary, 1, 2, o3 disinterested
persons to appraise the estate
• That the clerk will issue letters of
guardianship to the person appointed when
the person has qualified

29. • Section 1101.151 Order Plenary Guardianship
• If the Court finds the proposed ward totally
without capacity, the order must include (in
addition to the general items in Section 1101.153) :
• That the guardian has full authority over the
incapacitated person
• If necessary, the amount of funds from the
ward’s estate the court will allow the
guardian to spend for the ward
• Whether the ward is totally incapacitated
because of a mental condition
• That the person does not have the capacity to
operate a motor vehicle, make personal
decisions regarding residence, and vote in a
public election
• If it is a guardianship of the person or of both
the person and estate, the rights of the
guardian with respect to the person. [Section

30. • Section 1101.152 Order Less Than Plenary Guardianship
• If the Court finds the proposed ward lacks some
capacity, the order must include (in addition to the
general items in Section 1101.153) :
• The specific powers, limitations or duties of the
guardian with respect to the person’s care or the
management of the persons property
• The specific rights and powers retained by the
person
• With the necessity for supports and services,
and
• Without the necessity for supports and
services
• If necessary, the amount of funds from the ward’
s estate the court will allow the guardian to spend
for the ward
• Whether the ward is incapacitated because of a
mental condition, and if so whether the person
• Retains the right to make personal decisions
regarding residence or, vote in a public
election, or